Resurrecting a Doctrine on its Deathbed: Revisiting Federal Common Law Greenhouse Gas Litigation After Utility Air Regulatory Group v. EPA

This Note considers how the Supreme Court’s decision in Utility Air Regulatory Group v. EPA (UARG) may have created a new opening for federal common law nuisance litigation as a means to address climate change. The Court’s earlier decision in American Electric Power v. Connecticut (AEP) held that federal nuisance claims targeting greenhouse gas emissions were completely displaced by the Clean Air Act. However, the holding in AEP was premised on the assumption that the Clean Air Act uniformly addressed greenhouse gases throughout the statute. UARG upended this assumption, holding that there are sections of the Clean Air Act that do not encompass greenhouse gases. Therefore, there may be sources of greenhouse gas emissions that are not regulated by the statute. Based on the displacement analysis employed in AEP, this would mean that the federal common law of nuisance would not be displaced as to these sources. The Clean Air Act’s coverage of the greenhouse gas emissions from one important category of sources—existing stationary sources—is an open question. Until recently, the D.C. Circuit appeared poised to answer at least part of this question in West Virginia v. EPA , the case challenging the Obama administration’s signature carbon dioxide regulation—the Clean Power Plan. The Clean Power Plan was premised on Section 111(d) of the Clean Air Act, and the D.C. Circuit’s en banc decision would have resolved whether and to what extent Section 111(d) can be used to regulate certain existing sources’ greenhouse gas emissions. However, the Trump administration has proposed to rescind the regulation, and it appears increasingly unlikely that the D.C. Circuit will issue a decision on the merits of the litigation. Therefore, it remains unclear whether Section 111(d) addresses existing sources’ greenhouse gas emissions. As this Note shows, the only other section of the Clean Air Act that might encompass these sources’ greenhouse gas emissions is Section 115, but this is far from certain. This Note argues that a federal common law nuisance suit should be leveraged in the face of this uncertainty. The result would be salutary, win or lose. On the one hand, the suit could result in a holding that either Section 111(d) or Section 115 encompasses greenhouse gases, which would mean that the federal common law would indeed be displaced. This holding could then be used to force the Environmental Protection Agency (EPA) to regulate existing sources’ greenhouse gas emissions under those sections. On the other hand, if the court finds that the Clean Air Act does not address existing sources’ greenhouse gas emissions, then these sources would be subject to substantial litigation risk. This exposure, in turn, could induce these sources to ask Congress to draft legislation that addresses their greenhouse gas emissions, thereby displacing any future common law claims. In the end, the desired outcome of the federal nuisance suit is the same: to catalyze comprehensive regulatory or legislative coverage of greenhouse gas emissions in the United States, which is imperative to avert the most devastating effects of climate change